Delhi District Court
State vs . Jogender Kumar on 12 February, 2014
IN THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 07 (CENTRAL), ROOM NO.137,
TIS HAZARI COURTS, DELHI
STATE Vs. JOGENDER KUMAR
C.C. NO. 22/12
P.S. RPF/NDLS
Unique Case ID No. 02401R0551002012
Date of Institution : 09.11.2012
Date of reserving judgment : 20.01.2014
Date of pronouncement: 12.02.2014
JUDGMENT U/S 355 Cr.P.C.
a)Date of offence : 13.09.2012
b)Offence complained of : U/s 3RP(UP)Act.
c)Name of accused, his parentage : Jogender Kumar
& residence S/o Brij Mohan,
R/o Vegabond, 307 Bus Stop, Near
Kashmere Gate, New Delhi.
d)Plea of accused : Pleaded not guilty
e)Final Order : Acquitted
JUDGMENT:
1. This is a complaint case filed by the officials of Railway Protection Force (RPF) under section 3 of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as 'the Act'), wherein it is alleged that one person namely Jogender Kumar was apprehended at around 02.15 hrs by an RPF team on 13.09.2012 near Platform No. 1213, Delhi end, NDLS carrying a cardboard carton on his shoulder. The said package was discovered to be a booked consignment bearing railway marka R12/9 CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 1/16 NDLS 1916047 P2 HWH (railway property) which was reasonably suspected of having been stolen or unlawfully obtained. The railway property was seized, accused Jogender Kumar was arrested and personally searched vide memo Ex. PW2/A. He made disclosure statement Ex. PW2/B and confessional statement Ex. PW2/D whereby he admitted his guilt. He got prepared a pointing out memo Ex. PW2/C. Site plan Ex. PW1/E was prepared. This case was registered vide DD no. 6 dated 13.09.2012. The total value of railway property was opined to be Rs. 7084/. Further inquiry was conducted and after completion of the same, this complaint was filed in the court.
2. Since the present complaint was filed by the public servant in writing, recording of presummoning evidence was dispensed with. Precharge evidence was lead wherein the complainant examined PW1 Vijay Mandal (Consignor of Goods), PW2 SI Ramkaran (Recovery Witness), PW3 Gurbaksh Singh (Loading & Unloading clerk), PW4 Baljeet Singh (Parcel Officer), PW5 ASI Ram Kumar Kundu, PW6 SI Yodhistar Mudgal, PW7 Rakesh Kumar (Weighing Clerk) and additionally PW8 D.K Sharma (Receipt Clerk).
3. On the basis of precharge evidence so lead, charge for the offence under section 3 of the Act was framed against the accused vide order dated 19.07.2013 to which he pleaded not guilty and claimed trial.
4. At the trial, in terms of Section 246 CrPC, the witnesses already examined in precharge evidence were recalled for crossexamination in postcharge evidence.
5. PW2 SI Ram Karan and PW5 ASI Ram Kumar Kundu were a part of the RPF team which apprehended the accused. These witnesses deposed about the apprehension of the accused while in the possession of the CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 2/16 railway property which was seized and accused was arrested.
6. PW1 Vijay Mandal was the public person who booked the recovered package for transport through railways on 12.09.2012. He also identified the stolen case property which was produced before him by the IO at RPF post NDLS. He proved his detailed verification report as Ex. PW1/A and identified the case property in the court as Ex. P1 and Ex. P2.
7. PW3 Gurbaksh Singh was the loading and unloading clerk who loaded one package out of two bearing RR No. 1916047 alongwith 120 packages in train No. 2382 from NDLS to Howrah. He exhibited a copy of loading summary of the relevant time as Ex. PW3/A (OSR).
8. PW6 SI Yodishtar Mudgal is the EO who allegedly received the RR, Forwarding Note and Verification Certificate. He recorded the statements of witnesses. He obtained the loading and unloading particulars. He filed the complaint after the conclusion of enquiry.
9. Statement of the accused under section 313 CrPC was recorded on 09.12.2013 wherein he denied all the allegations and pleaded innocence. He stated that nothing was recovered from his possession. However, he chose not to lead any evidence in defence.
10. It is in these circumstances that the Ld. PP for RPF has argued that the prosecution/complainant has been able to prove its case beyond reasonable doubt against the accused. He has primarily submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.
11. On the other hand, Ld. defence counsel has submitted that the entire prosecution case is false. It is argued that the entire case is based only on the testimony of interested witnesses. A prayer for acquittal has been made.
12. I have heard the arguments advanced by the Ld. PP for RPF as well as CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 3/16 the Ld. Defence counsel and have meticulously perused the material available on record.
13. The present case has been filed under Section 3 of the Act which reads as follows:
"Whoever is found or is proved to have been in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable
(a) for the first offence with imprisonment for a term which may extend to five years or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees...".
14. The Hon'ble Supreme Court has laid down the law in precedents titled as State of Maharashtra v. Vishwanath Tukaram Umale [AIR 1979 SC 1825] and also in Om Prakash v. State of UP [AIR 2008 SC 1112], that the following ingredients need to be established by the prosecution in such cases to establish the guilt of the accused:
(i) the property in question should be railway property,
(ii) it should reasonably be suspected of having been stolen or unlawfully obtained, and
(iii) it should be found or proved that the accused was or had been in possession of that property.
15. Before embarking upon the evaluation of the evidence available on record, it would be appropriate to discuss the background leading to the creation of RPF and conferment of powers upon RPF to initiate proceedings CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 4/16 under the Act. The RPF was constituted by the Parliament of India vide Railway Protection Force Act 1957 (hereinafter referred to as the "RPF Act"). The preamble of said RPF Act records the reason for constitution of RPF as an armed force of Union as "to provide better protection and security to railway property, passengers area and passengers and for matters connected therewith". Despite the enactment of RPF Act 1957, the pilferage of railway materials could not be checked effectively. Accordingly, the Railway Property (Unlawful Possession) Act 1966 was enacted. This Act, as amended uptodate, authorizes certain members of RPF to arrest any person found in unlawful possession of railway property, to conduct an inquiry in this regard u/s 8 (of the Act) and then to file a complaint u/s 3 (of the Act). The inquiry has been deemed to be a "judicial proceeding"
vide Section 9 (4) of the Act for the purposes of Sections 193 & 228 of the Indian Penal Code (IPC).
In order to regulate the powers of RPF, conferred under the Act, the Railway Board issued order no. 73 SPL/REGN/CH.XXV dated 09.07.1975 whereby all the procedures to be followed from the moment of arrest of an offender (under the Act) till the forwarding of the complaint for trial has been laid down.
Further rules were laid down with the promulgation of Railway Protection Force Rules 1987 (hereinafter referred to as "RPF Rules") which prescribed under rule no. 222 that all the crimes affecting railway property have to be entered either in the Localized Crime Register or in Unlocalized Crime Register. (Localized Crimes are those where the actual place of offence is prima facie apparent from the inspection of the scene and Unlocalized crimes are those where actual place of crime cannot be immediately known or ascertained). The relevant part of said rule is CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 5/16 reproduced below for ready reference :
222.5.... For the "Localized Crime Register", two summaries shall be prepared one shall be cause wise and the other commoditywise. The causewise summary shall have its sub heading as :
(a) Running Train Thefts;
(b) Yard Thefts;
(c) Goods Shed, Parcel godowns and Platform Thefts;
(d) Pilferages;
(e) Thefts of fittings from Rolling stock;
(f) Thefts of Railway Material including coal (except theft of fitting from rolling stock);
(g) Miscellaneous;
Each summary may have further subclassifications as may be prescribed through the Directives.
Similarly, under Rule 223 of RPF Rules, it has been provided that all seizures or recoveries of railway property shall be entered in malkhana register and an entry to that effect has to be made in the concerned crime register. It has been further provided under rule 223.2 of the RPF Rules that where the seized property cannot be linked to the railway property for which theft or shortage memo has been issued, the same shall be entered in Railway Property (Unlawful Possession) Act register. These rules categorically imply that the RPF is under an obligation to make the necessary entries in its records/registers regarding any intimation about the theft of any Railway Property.
16. In the present case, the RPF has not followed the procedure laid down by the statutory bodies to regulate the inquiry anticipated u/s 8 of the CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 6/16 Act as the RPF officers who allegedly apprehended the accused red handed not only prepared the recovery memo (vide which the case property was allegedly seized from the possession of accused), but also the disclosure statement, the pointing out memo, the confessional statement, the site plan. Thereafter, the said RPF officials went on to take the accused to the concerned RPF post and get recorded the roznamcha entry whereby all the proceedings held by them were recorded. This conduct of the said RPF official is in direct violation of the Railway Boards order dated 09.07.1975 (as mentioned before in this judgment) which prescribes, under rule no. 7, that the apprehending RPF officials were to prepare only a recovery memo and then bring the entire facts and circumstances into the notice of officer Incharge of the RPF post. Thereafter, the said apprehending RPF officials ought to have handed over the accused alongwith case property recovered and the recovery memo to the officer Incharge of the concerned RPF post. The officer Incharge concerned should have then directed the inquiry as anticipated u/s 8 of the Act. In this case, a substantial part of inquiry was conducted by the RPF officials who apprehended the accused. The inquiry officer's role was negligible as he merely got the case property identified and then prepared the remaining documents available on record. In these circumstances, chances of prejudice to the accused at the hands of apprehending RPF official could not be ruled out in view of the fact that railway property is lying unclaimed at most of the times.
Not only this, the RPF then failed to make the necessary entries in the Localized Crime Register or the Unlocalized Crime Register either at the time of alleged apprehension of accused alongwith case property or at the time of receipt of theft memo (which theft memo was received by the RPF on the day of alleged apprehension of accused). This court cannot lose sight CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 7/16 of the fact that security agencies like the RPF have been granted wide powers for the apprehension and arrest of offenders. This court is further aware of the fact that railway property is lying strewn all across the length and breadth of the country whereever railway network is available and so in order to channelize the powers and to restrict their misuse, certain rules regarding the conduct and procedure of the security agencies have also been prescribed. In the present case the RPF has blatantly violated the mandate of rules 222 and 223 of RPF Rules 1987 by not making the necessary entries, thereby bringing its motives under a cloud of doubt. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that :
"if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. "
17. It is further pertinent to mention here that the RPF proceeded to hold an inquiry u/s 8 of the Act against the accused without making any entry in the Localized Crime Register or Unlocalized Crime Register. Admittedly, the inquiry is deemed a "judicial proceeding" u/s 9(4) of the Act for the purposes of Sections 193 & 228 of the Indian Penal Code (IPC). If rule 8 of the Railway Board order dated 09.07.1975 (as referred to in the aforegoing paragraphs) is read in conjunction with the RPF rules, then it is apparent that the inquiry could have been undertaken only after making the entries in the prescribed crime registers.
CC No. 22/12PS- RPF/NDLS State Vs. Jogender Kumar Page 8/16 Although a roznamcha entry was made after the apprehension of the accused and the recovery of railway property, however the same does not appear to be a sufficient compliance of the procedural rules. Upon reading the RPF rules carefully in conjunction with rule no. 8 as provided under Railway Board's order no. 73See.Spl/Regn/Ch.XXV dated 09.07.1975 (as referred to in the aforegoing paragraphs) it is apparent that the inquiry u/s 8 of the Act is to be conducted subsequent to the registration of case in the concerned Crime Register. In the present case the inquiry was initiated on the basis of roznamcha entry after ignoring the mandatory procedural rules. The entry in Localized/Unlocalized Crime Register is the foundation of the inquiry anticipated u/s 8 of the Act. However, the prosecution has not proved the entries made in the Localized/Unlocalized Crime Register during trial. Since the RPF has failed to lay down the foundation of the inquiry, the necessary corollary is that the inquiry conducted by the EO has to be viewed with suspicion, moreso, when the inquiry anticipated u/s 8 of the Act is a "judicial proceeding" as per Section 9(4) of the Act. In this regard the observations made by the Privy Council in Nazir Ahmed Vs KingEmperor AIR 1936 Privy Council 253(2) are very relevant. It was held in Nazir Ahmed's case (Supra) that "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden". Applying the ratio of Nazir Ahmed's case (Supra), it has to be necessarily held that the inquiry conducted by the RPF is rendered vitiated for the absence of proof of entries in Localized/Unlocalized crime registers. Consequently all the proceedings conducted after the recording of roznamcha entry lose their value. Inquiry undertaken in this case by the RPF is devoid of legal foundation and the necessary corollary is that the proceedings conducted u/s 8 of the Act are CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 9/16 null and void. The deliberate noncompliance of prescribed rules by the RPF during investigation further casts a duty upon this court to scrutinize the evidence adduced on record by the complainant pertaining to the facts prior to the recording of roznamcha entry with extra caution and circumspection. Reason being the fact that there is no provision for sending the information about the arrest of any person by the RPF to the Magistrate concerned. The RPF merely produces the accused before the Magistrate for seeking judicial custody but does not furnish the copies of any entry made in the Loclized/Unloalized Crime Register. This flawed practice makes the common man vulnerable to the whims and fancies of RPF. Infact the person apprehended by the RPF is never revealed as to under which case number he has been apprehended /booked. Although a copy of the recovery memo is stated to have been supplied to the accused at the relevant time but the same is not sufficient for the accused to get complete information about the case number which has been registered against him by the RPF. More over the case property is sealed, unsealed at the RPF post for "verification" purposes with the seals of RPF officials without any measure to check the misuse of seal. This practice further opens the doors to manipulations by RPF at their will.
18. This court shall now deal with the evidence available on record pertaining to the question of the identification of the case property as railway property. The prosecution is under an obligation to prove beyond reasonable doubt that the case property allegedly recovered from the accused is a railway property. For any property to be a railway property, it should have been proved to be in possession of or in the charge of the railway administration (section 2(d) of the Act). As far as the consignments are concerned, the same come into the possession of the railway as soon as CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 10/16 the same are accepted for consignment. Until the same is delivered at the destination to the consignee after completion of all formalities, the same remains in custody of the railways. In case of any loss in the transit, the responsibility is that of the railways. Further, the railway marka which is put by the railway officials on every such package booked through railway bearing the specific RR No. (railway receipt number), shows that the property was a railway property. The Ld. PP for the RPF has apprised this court that the booking clerk is the initial interface of the railway which deals directly with the private persons who approach the railway for transport of goods (consignments). The booking clerk receives the Forwarding Note from the private persons which forwarding note is prepared by the said private persons. After that the same is taken into custody by railway and remains a "Railway Property" till its delivery at the destination. In the present case, the public witness PW3 was the person who allegedly booked/consigned the case property for transport via railways however, he never produced the original Forwarding Note during trial. A duplicate copy of the Forwarding Note was exhibited in the statement of PW3 as PW3/A. Admittedly, the said document is not per se admissible. In the absence of the original RR, this court could not hold that the Forwarding Note has been proved as per law. Having held so, this court is of the opinion that once the first link in the chain of events bringing the case property under the ambit of "railway property" snaps, it is difficult to believe the version of the prosecution that the case property allegedly recovered from the accused was a railway property, which is the first and the foremost ingredient of the offence punishable u/s 3 of RP(UP)Act 1966. Moreso when the Railway Receipt (RR) (which is to be prepared on the basis of forwarding note) has also not been proved during trial. On this CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 11/16 short ground alone, the accused is liable to be acquitted. Testimony of PW3 is not sufficient in this regard as the said witness has merely deposed about the movement of one of the parcel packages through the rail network after booking.
19. The case of the prosecution has many other weaknesses apart from the above mentioned technical shortcomings. The prosecution projects the DD no. 6 as the entry made in the roznamcha register after the arrival of the RPF staff consequent to the alleged apprehension of the accused. However, the prosecution has not placed the relevant departure entries of the RPF staff vide which they left the RPF post for patrolling the area and later on allegedly apprehended the accused red handed. There is no justification forthcoming on behalf of RPF, to exclude the departure entries. Equally, important is the fact that the RPF failed to associate any public person at any stage of enquiry before the filing of present complaint. Infact, the witnesses examined have not deposed even a word about any attempt made by RPF to associate any independent witness to the recovery proceedings. It is not disputed that the place of alleged arrest of the accused is a place frequented by public persons or railway officials. Either the passengers or the vendors, or the coolies are always present in the railway premises. This court can take note of the fact that running of railways is a herculean 24 hours task. It could not be imagined that the presence of even an independent railway official could not be ensured by the RPF. This further makes the recovery doubtful in view of the observations made by the Hon'ble Supreme Court in Ritesh Chakarvarti Vs State of Madhya Pradesh, (SC)2007 (1) SSC (Crl.) 744, wherein it has been observed that:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 12/16 place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken".
20. Further more, it is interesting to note here that the RPF official who allegedly apprehended the accused along with the case property, did all the documentation (i.e preparation of seizure/arrest memo, disclosure statement, confessional statement) at the spot of apprehension of accused, but has nowhere explained as to why he was carrying the papers, stamp pad etc. while being on patrolling duty. It is not disputed that the patrolling parties of RPF are not obliged to carry the articles mentioned above while leaving the posts for patrolling. It is difficult to understand as to why the RPF official concerned was carrying the abovesaid articles in this case. There is no explanation as to how the said RPF official could complete/fill the said documents without any hard surface to place the documents on, as none of the documents available on record bear any mark of damage which is bound to occur in the absence of any hard surface to place the documents on at the time of scribing the proceedings upon them. This court is unable to comprehend the suspicious conduct of the said RPF official. It is difficult to believe that the documentation allegedly done by the RPF official was in fact done at the spot of apprehension.
21. Moreover, the prosecution has not proved the theft memo during trial and which lacuna damages the case of the prosecution as one of the essential ingredients of the offence punishable u/s 3 of the Act remains "not proved". Reason being the fact that the person who issued the theft memo Ex. PW2/I was never examined during trial. The said document was exhibited in the statement of recovery witness PW2 and PW5, who did not depose having seen the person (who issued the theft memo) preparing the CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 13/16 same (theft memo).
22. Lastly, the only material that is left on record against the accused is his confessional statement allegedly recorded by the RPF officials at the spot of apprehension. Ld. PP for RPF has argued that the confessional statement made by the accused to RPF is admissible in evidence. No doubt the confessional statement recorded by RPF officials is admissible in evidence as observed by the Hon'ble Apex Court in Bal Kishan A. Devi Dayal vs. State of Maharashtra, AIR 1981 SC 379. However, the observations made by the Hon'ble Court in Bal Kishan's case do not, in the considered opinion of the court, preclude this court from assessing the attending circumstances to ensure that the confessional statement was voluntary in nature or not. It is not disputed that the accused was apprehended after a brief chase by the RPF Officials who are presumed to have been uniformed and probably armed at the relevant time. This court fails to understand as to how a person allegedly apprehended by uniformed and armed RPF Officials (whose uniform is identical to the one worn by local/State police) could be free from any fear, mental pressure or be even headed at the time of making the alleged confessional statement or could confide in the RPF officials who were admittedly unknown to him. In fact the confessional statement contains a recital whereby the accused seeks to be forgiven by the apprehending RPF officials. Apparently the accused could not be presumed to be free from any undue influence. Moreover, the witnesses who proved the alleged confessional statements, are the persons who allegedly apprehended the accused and none of the said witnesses have reproduced the exact words stated by the accused at the relevant time which further brings their testimony under a cloud of doubt as per the observations made by Hon'ble Apex Court in C.K. Raveendran, Appellant CC No. 22/12 PS- RPF/NDLS State Vs. Jogender Kumar Page 14/16 v. State of Kerala, Respondent, AIR 2000 Supreme Court 369 wherein it has been laid down that the witness of an extra judicial confession has to state the exact words used by the accused at the relevant time. The confessional statement of accused was recorded by the same RPF officials who were a part of the team which allegedly apprehended the accused red handed. In the totality of the circumstances, this court could not reasonably believe the absence of any pressure upon the accused at the relevant time. This court has already held in the preceding paragraphs that the documentation done at the spot by the RPF officials is not entirely free of doubts. Extra judicial confessions like the one in hand are always considered to be a weak piece of evidence. In the absence of any corroborative material and the absence of any public/independent witness who could depose about the sanctity of the confessional statement available on record, this court is not inclined to act upon the same and convict the accused.
23. In of the above mentioned observations, this court is of the considered opinion that prosecution fails to prove the charges against the accused beyond any reasonable doubt as not only the recovery of the case property is clouded with doubts, even the procedural requirements have not been complied with by RPF without any justification as discussed in the preceding paragraphs. It is a settled legal preposition that in case of doubt, benefit shall be given to the accused. The accused Jogender Kumar deserves benefit of doubt and is accordingly acquitted of all charges.
Announced in the open court (PAWAN SINGH RAJAWAT)
this 12th day of February 2014 METROPOLITAN MAGISTRATE07
(CENTRAL)/DELHI
CC No. 22/12
PS- RPF/NDLS
State Vs. Jogender Kumar Page 15/16